Monday, May 31, 2010

Legal experts and civil libertarians are attacking the administration of President Barack Obama for resusiscitating what they regard as “deeply flawed” military commissions to try detainees at Guantanamo Bay – and their choice of a “child soldier” as the first defendant.

They are particularly incensed that Omar Khadr, Guantanamo’s “child soldier” – a Canadian captured in Afghanistan seven years ago when he was only 15 and imprisoned ever since – is slated for the first trial to be held since Obama took office in January 2009.

The “new and improved” military commissions were part of the 2010 National Defense Authorization Act, which President Obama signed last month. It included some changes in the rules governing commission proceedings and is intended to replace – and improve upon -- the Bush-era Military Commissions Act of 2006, which the Supreme Court found unconstitutional last year.

Human rights groups and many legal experts are charging that, while the new regulations improve the Commissions to come extent, they remain not only unnecessary but dangerous because they establish a parallel system of second-class justice. Furthermore, they point out, the actual implementation of Military Commission proceedings could be delayed for years by legal challenges – as were their predecessors.

Much of the early pushback against the Military Commissions is centering on the Khadr case. Khadr is a Canadian citizen who was arrested in Afghanistan when he was 15 years old, accused of throwing a grenade that killed an Army medic, and sent to Guantanamo Bay in 2002, where he has been imprisoned for more than seven years without charge or trial.

Khadr is accused of throwing a grenade that killed an Army medic in Afghanistan. The U.S. government has refused to acknowledge his status as a child or to apply universally recognized standards of juvenile justice in his case.

In a related development, The United Nations Children’s Fund (UNICEF) has voiced its concern about the Khadr prosecution, saying it sets a dangerous precedent for child victims of recruitment in armed conflicts.

UNICEF Executive Director Anthony Lake said in a statement that the recruitment and use of children in hostilities is a war crime, and those who are responsible – the adult recruiters – should be prosecuted.

Lake said, “The recruitment and use of children in hostilities is a war crime, and those who are responsible – the adult recruiters – should be prosecuted. The children involved are victims, acting under coercion. As UNICEF has stated in previous statements on this issue, former child soldiers need assistance for rehabilitation and reintegration into their communities, not condemnation or prosecution.

“The children involved are victims, acting under coercion,” he said, adding that former child soldiers need assistance for rehabilitation and reintegration into their communities, not condemnation or prosecution.

“The prosecution of Omar Khadr may set a dangerous international precedent for other children who are victims of recruitment in armed conflicts,” Lake added. Lake is former National Security Advisor to former President Bill Clinton.The Khadr trial is reportedly set to begin in August.

According to Human Rights First, no international tribunal since Nuremberg has prosecuted a child for alleged war crimes. The United Nations committee that monitors the rights of children found that the United States has held alleged child soldiers at Guantánamo without giving due account of their status as children and concluded that the “conduct of criminal proceedings against children within the military justice system should be avoided.”

The only Western citizen remaining in Guantanamo, Khadr is unique in that Canada has refused to seek extradition or repatriation despite the urgings of Amnesty International, UNICEF, the Canadian Bar Association and other prominent organizations.

A 2009 review determined that the Canadian Security Intelligence Service failed Khadr, by refusing to acknowledge his juvenile status or his repeated claims of being abused. It was also determined that Minister of Foreign Affairs Lawrence Cannon had lied when he claimed that Khadr had built bombs to kill Canadian soldiers.

The Attorney General believes that the reforms Congress recently incorporated into the Military Commissions Act will ensure that military commission trials will be fair and that convictions obtained will be secure. He has announced that some terror suspects will be tried in Federal civilian courts while others will appear before Military Commissions.

But many disagree -- fiercely.

One of them is Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School. He told IPS, “Continuing to rely on military commissions to try those otherwise unable to be convicted on strained and novel ‘war crimes’ charges (that don’t meet the usual definitions of war crimes), by contrast, proceeds from the politically popular but legally inappropriate and counterproductive ‘endless global war on terror’ mindset that has clearly been so destructive to actual national security. The fraudulent nature of the latter process is evident in the unwillingness of the new administration, like the Bush administration, to say that it will release those acquitted or whose danger remains suspected but unproven.”

He added, “It’s a very bad sign that the Obama administration chose to begin the trials with the case of alleged child soldier – who was threatened with rape by US interrogators -- Canadian citizen Omar Khadr, who is not even accused of any war crime that would violate the traditional law of war.”

He said, “The absence of age limitations for juveniles with undeveloped brains only begins the long list of continued problems with these commissions – above all the fact that their existence, operation and procedural rules blatantly contradict the laws, treaties, and policies under which the US has committed to protect human rights.”

“Maybe that’s why the Obama administration, no less than the Bush administration, still cloaks the trials and evidence in excessive secrecy and has acted against veteran reporters covering them (as happened with several reporters covering Khadr’s opening hearing,” Pitts opined.

Another critic is Prof. David Frakt of Western State University law school, the Air Force Reserve officer who successfully served as military defense counsel for a Guantanamo detainee – GITMO’s other child soldier, Mohammed Jawad, who was recently released to return to Afghanistan.

Lt. Col. Frakt has strong views on Military Commissions. He believes that “Allowing some cases to go forward in the military commissions means that some detainees are getting second-class justice.”

Frakt is also critical of the “new” Military Commissions because, like their predecessors, they fail to protect juveniles.

“It is appalling that the Obama Administration is allowing charges to go forward in the military commissions against Omar Khadr. Clearly, Omar Khadr, as a juvenile of 15 at the time of his alleged offenses, could not be tried as an adult in federal court, so they are allowing him to be tried as an adult in the military commissions, potentially making him the first child soldier to be tried and convicted as a war criminal in world history.”

The nation’s most powerful civil liberties organization, the American Civil Liberties Union, has launched a letter-writing campaign designed to persuade book publishers not to use the “ideologically-slanted standards for social studies textbooks” approved by the Texas State Board of Education as a model for use in other states.

In a letter to its members, the ACLU said, “It's up to us to convince textbook publishers that Texas's curriculum shouldn't be adopted for use in other states. We'll need to act fast to keep this extremism in check.”

Because of the large number of textbooks used by Texas’s 4.9 million children, the Lone Star State has an outsized influence on textbook publishers. The State Board of Education, elected by Texas voters, last week approved what most consider an ultra-conservative curriculum for social studies textbooks, overruling recommendations by teachers and scholars.

At the same time, the head of the Texas chapter of the ACLU is questioning whether members of the Texas State Board of Education “acted outside the rules” in approving the curriculum.

Terri Burke, Executive Director of the American Civil Liberties Union (ACLU) of Texas, told IPS that she intends to “call for a thorough investigation” of reports that members of the Board continued to make changes in resolutions after they were voted on.

She said she has heard such reports from a variety of independent sources.

Ms. Burke added, “If we can’t produce proof that this happened, we still intend to work with members of the legislature and other activist organizations to change the rules of the game so that the people we elect to do this job have the professional qualifications needed to do it properly.”

For the next ten years, Texas school children will be taught that the authors of the U.S. Constitution believed America was “a Christian nation” where no separation of church and state was contemplated.

They will also learn to question whether the United Nations presents a threat to U.S. sovereignty.

Other changes include:

President of the Confederacy Jefferson Davis's inaugural address will be studied alongside Abraham Lincoln's.

The U.S. government will be referred to as a "constitutional republic," rather than "democratic."

Students will be required to study the decline in the value of the U.S. dollar, including the abandonment of the gold standard.

Thomas Jefferson will be deleted as an example of an influential political philosopher in a world history class. He will be replaced by St. Thomas Aquinas, John Calvin and William Blackstone.

Jefferson, who first used the phrase “separation between church and state” is not admired by conservatives.

Noting that the words “separation of church and state” were not included in the Constitution, the Board will now require students to compare and contrast the judicial language with the First Amendment's wording.

Students also will be required to study the decline in the U.S. dollar's value, including the abandonment of the gold standard.

Students will now learn about “the conservative resurgence of the 1980s and 1990s, including Phyllis Schlafly, the Contract With America, the Heritage Foundation, the Moral Majority and the National Rifle Association.”

The teaching of the civil rights movement will ensure that students study the violent philosophy of the Black Panthers in addition to the nonviolent approach of the Rev. Dr. Martin Luther King Jr.

Students will study “the unintended consequences” of the Great Society legislation, affirmative action and Title IX legislation.

They will now learn that Germans and Italians as well as Japanese were interned in the United States during World War II, to counter the idea that the internment of Japanese was motivated by racism.

The history of McCarthyism will now include “how the later release of the Venona papers confirmed suspicions of communist infiltration in U.S. government.” The Venona papers were transcripts of some 3,000 communications between the Soviet Union and its agents in the United States.

In economics, the revisions add Milton Friedman and Friedrich von Hayek, two champions of free-market economic theory, among the usual list of economists to be studied, like Adam Smith, Karl Marx and John Maynard Keynes.

The word “capitalism” has been replaced with the “free-enterprise system.”

“The importance of personal responsibility for life choices” will now be included in a section on teenage suicide, dating violence, sexuality, drug use and eating disorders.

The Board’s actions have drawn widespread criticism from education scholars. When one critic noted the state has few standards for service on the State Board of Education, including no educational requirements for the Commissioner of Education, Board Member David Bradley of Beaumont asked: “So, should the head of the Texas Alcoholic Beverage Commission be a drunk?” My response would have been, “No, but the top educator in our state should be educated.”

"We do a disservice to children when we shield them from the truth, just because some people think it is painful or doesn't fit with their particular views," Duncan said in a statement. "Parents should be very wary of politicians designing curriculum," he said.

The ACLU of Texas urged the state Legislature to place more control over the board.

"At the end of three long days, the State Board of Education has amended, re-amended and approved curriculum standards that are more ideological than ever, despite pleas to not politicize what is taught to Texas school children," said the ACLU’s Terri Burke.

Rep. Mike Villareal, a San Antonio Democrat, said the Board “ignored historians and teachers, allowing ideological activists to push the culture war further into our classrooms," said. "They fail to understand that we don't want liberal textbooks or conservative textbooks. We want excellent textbooks, written by historians instead of activists."

Bush-era Education Secretary and former Houston school superintendent Rod Paige told the board, “What students are taught should not be the handmaiden of political ideology.”

And Benjamin Todd Jealous, the national president of the National Association for the Advancement of Colored People (NAACP), said that children need to learn the “whole truth, not half truths.” He said the standards threaten students’ ability to compete on advanced placement tests and SATs.

A new U.S. Government report is recommending that 48 men currently detained at Guantanamo Bay should be held indefinitely without trial because “for many of the detainees, there are no witnesses who are available to testify in any proceeding against them.”

But authorities who follow the tortuous fortunes of Guantanamo say there is another reason: The evidence against them has been produced by confessions obtained through torture and would not be admissible in either a civilian or military court.

The report comes from the Guantánamo Review Task Force, appointed by President barrack Obama during his first week in office to review and assess each detainee’s case to determine his fate.

The report found that the large majority of detainees were low-level fighters who were not involved in plots against the United States. The report by the recommends that 126 of the detainees still held at Guantánamo be transferred to their home countries or a third country, that 36 be prosecuted in federal courts or military commissions, and that 48 of the detainees be held indefinitely without charge or trial.”

Constitutional law experts and civil liberties advocates have consistently maintained that the U.S. system of justice leaves no place for people who are deemed “impossible to try but too dangerous to release.”

Many of them expressed this view in response to the recent introduction of legislation that mandates trials only by military commissions and recognizes and plans for a category of prisoners to be held indefinitely without charge or trial. The legislation was introduced by Senator John McCain, a Republican from Arizona, and Lindsey Graham, a Republican from South Carolina.

Commenting on the legislation, Chip Pitts, President of the Bill of Rights Defense Committee (BORDC), told IPS, “This bill’s warped understanding of international law and its mistaken predicate still blur actual wars (such as those in Afghanistan and Iraq today) with the politically appealing yet misleading and overbroad chimera of an endless and geographically unlimited ‘global war on terror’.”

He added, “Particularly when seen along with the Obama administration’s rumored reversal of its prior decision to try 9/11 suspects in civilian courts as opposed to military commissions, it’s another leg in the terrible race to the bottom in which politicians compete to seem ‘tougher’ on terrorism while really diminishing national security.”

Prof. Peter Shane of the Ohio State University law school told IPS, “There seems to be a fundamental philosophical difference between those who believe that the rule of law threatens our fight against terrorism and those who regard it as one of our most potent weapons. There is no evidence to believe that the executive branch is making decisions with regard to the interrogation or detention of suspected terrorists that is compromising either our capacity to obtain intelligence information or to protect the United States from terrorist attack.”

The Bush Administration, he added, “convicted over 300 terrorist suspects apprehended in the United States using our criminal justice system to prosecute terror-related crimes. We should continue to leave these decisions to the discretion of federal prosecutors and investigators.”

Another legal scholar, Prof. Frances Boyle of the University of Illinois law school, told IPS that the current controversy had its roots in the administration of President George W. Bush, who created a universe of “legal nihilism where human beings (including U.S. citizens) can be disappeared, detained incommunicado, denied access to attorneys and regular courts, tried by kangaroo courts, executed, tortured, assassinated and subjected to numerous other manifestations of State Terrorism.”

He said, “This category of ‘unlawful enemy combatants’ negates almost the entirety of the post-World War II regime for the International Protection of Human Rights established by the U.N. Charter in 1945 and most of the major international human rights treaties.”

The American Civil Liberties Union (ACLU) also rejected the notion that there is a significant class of prisoners who simultaneously cannot be prosecuted or safely released. She said detaining terrorism suspects without charge or trial is “illegal and un-American.”

Laura W. Murphy, Director of the ACLU Washington Legislative Office, said it was “Incredibly disturbing to hear that the Obama administration will continue to hold a significant number of detainees without charge or trial, many of whom were presumably not captured near any battlefield. It would be a colossal error for the Obama administration to continue its predecessor’s policy of indefinitely holding terrorism suspects, whether at Guantanamo or on U.S. soil. Detaining individuals indefinitely without charge or trial is un-American and violates our commitment to the Constitution and due process.”

The American Bar Association, the American Civil Liberties Union, and numerous other legal organizations, are demanding that the Senate Armed Services Committee to reject a provision in a House of Representatives bill that would mandate an investigation into lawyers representing Guantanamo Bay detainees.

The National Defense Authorization Act for Fiscal 2011 requires the inspector general to investigate "the conduct and practices" of Guantanamo lawyers and report back to the House and Senate Armed Services Committees within 90 days.

The provision was quietly tucked into the Defense bill last week by Rep. Jeff Miller, a Florida Republican. At the time, he criticized the John Adams Project, a joint enterprise of the ACLU and the National Association of Criminal Defense Lawyers. The project provides research and legal assistance to military lawyers defending detainees in military commissions.

The bill is pending on the House floor where debate and passage are expected this week.

The lawyers have defended the legality and propriety of their efforts. They contend that the detainees were illegally tortured in the custody of the Central Intelligence Agency, and they want to raise that issue at trial. To do so, they say they need to identify potential witnesses to the interrogation sessions.

Rep. Miller says this effort is “disloyal” and illegal. He says the “intelligence community deserves a complete and honest investigation” into whether laws or policies were violated.

Democrats on the committee agreed to Miller’s proposal after several modifications. One change added the requirement of “reasonable suspicion” of wrongdoing before a lawyer would be investigated by the inspector general.

"I think this is of a piece with lots of other things we've seen in the last few months -- attacks on what kind of representation and protection detainees are entitled to," said terrorism law scholar Stephen Vladeck of American University Washington College of Law. "Whether or not this provision makes it through the House and Senate, it's just another episode in an increasingly common story."

Lawyers for Guantanamo detainees strongly condemned the Miller proposal. One of them, Barry Coburn, said, "When I was in law school, I was taught in our professional-responsibility class that the highest calling of a lawyer is to represent an unpopular client."

"I don't think the government should attempt to punish or intimidate us for doing so," he added.

And Chip Pitts, President of the Bill of Rights Defense Committee, told us, “This vague, overbroad, ill-considered, and likely unconstitutional bill attempts to use the country’s military to chill the brave and already besieged military and civilian defense lawyers from doing their job illustrates the extent to which that the basest political instincts still infect counterterrorism policy in ways that threaten not only the much-needed ongoing search for accountability for torture and other rights violations, but the rule of law itself.”

He said it is “impossible for lawyers to represent Gitmo detainees without violating the vague terms of this bill (which include any interference with the operations of the Department of Defense).

Pitts sees the attack on the GITMO lawyers as “a form of neo-McCarthyism that recalls an “A to Z” of some of the worst historical and current excesses -- in places ranging from Argentina and Chile under their “dirty wars” to Nazi Germany and today’s China, Syria and Zimbabwe.”

“This latest attack on lawyers is a solution in search of a problem: as factually unjustified and repulsive as the Bush administration’s politically motivated and counterproductive attacks on DOJ and Gitmo lawyers and the continued attacks by rightist demagogues like Bill Kristol and Liz Cheney on these lawyers and on the very use of courts to try terrorist suspects. The fact that the lawyers represent suspects clearly doesn’t make them sympathetic to the underlying crimes of which their clients are accused; but without lawyers, how will the system ever deliver justice or ascertain the truth? The patriotic lawyers representing these unpopular clients deserve the highest praise – not stigmatization that attempts to stop them from doing their jobs.

Scott Horton, Constitutional law expert and contributing editor at Harper's Magazine, held similar views. “This provision was sponsored by Florida Republican Jeff Miller and it's another chapter in the efforts of political figures close to Dick Cheney to smear the habeas lawyers,” he said.

“Why? ”Horton asked, and then answered: “Things haven't been going well for GOP's Gitmo narrative. The total historical prison population of Gitmo is 779; only 181 prisoners remain, and it seems unlikely that more than 60-70 of them will ever face any charges--most of them the prisoners who were held at black sites and moved to Gitmo only in September 2006.”

Horton added, “Between 80 and 90 percent of the prisoners held there were, it turns out, not only not the "worst of the worst," they were in fact not terrorists at all but a bunch of nobodies picked up by Pakistani security and Afghan warlords in exchange for bounty payments from the Americans--while the real people for whom Guantanamo was designed, 600-800 Taliban and Al Qaeda leaders, were allowed to go free when Dick Cheney gave the green light to Operation Evil Airlift so the Pakistanis could remove them from Kunduz in November 2001.”

Horton says that, “Rather than acknowledge the horrendous mistakes that were made, Miller and his colleagues want to blame the lawyers, which explains this McCarthyite measure. But it's real purpose is to shift attention away from the fact that the Gitmo prisoners will by and large be sent home after determinations by military intelligence and the courts (and usually by conservative Republican judges) that they were the wrong people who never should have been held at Gitmo in the first place.”

The House provision directs an investigation of military or civilian lawyers when there is a "reasonable suspicion" that they have engaged in any conduct or practice that interferes with the operations at Guantanamo; violates any Department of Defense policy or law within the inspector general's jurisdiction, or generates any "material risk to a member of the U.S. Armed Forces."

In a letter Wednesday to Senate Armed Services Committee Chairman Carl Levin, a Michigan Democrat, and senior Republican Sen. John McCain of Arizona, Carolyn Lamm, president of the American Bar Association said the inspector general provision will have a "chilling effect" on the ability of lawyers to give zealous advocacy and effective assistance of counsel to their Guantanamo clients.

"It will compromise the professional independence of counsel and divert already starved defense resources from defending clients to defending the conduct, practices, actions and strategies of their lawyers," she wrote. Lamm added that the Department of Justice, not the Department of Defense, is the appropriate agency to investigate any legal wrongdoing by these lawyers.

The National Institute of Military Justice and the American Civil Liberties Union joined the ABA on Thursday in criticizing the Defense bill provision.

Rep. Miller's press spokesman reportedly said the provision is "focused on investigating attorneys who may have outed covert operatives in the field.

Anthony Romero, executive director of the ACLU, said in a statement, "The members of the John Adams Project at all times adhered to the law and fulfilled their ethical obligations while representing their clients. In addition, the members of the John Adams Project complied with every requirement of the Joint Task Force and every protective order of the military Commissions."

American University’s Vladeck said he had hoped the strong criticism of conservative attacks on the so-called al Qaeda 7 -- Obama Administration lawyers who had prior service as detainee lawyers -- and of Bush Administration official Cully Stimson's critique of law firms engaged in Guantanamo litigation would have ended these attempts to hinder lawyers in their defense of detainees.

"To whatever extent this is a concerted attack, it's manifesting frustration with the courts more than with lawyers," he suggested. "But courts, particularly the Supreme Court, are far less politically palpable targets. It's always easier to go after the lawyers."

The controversy over Guantanamo defense lawyers was set off last March when a group of conservatives headed by Liz Cheney, the daughter of former Vice President Dick Cheney, launched an effort to label seven Justice Department lawyers who previously defended Guantanamo detainees as terrorist sympathizers.

But many other conservatives were quick to attack Cheney’s proposal. They included Ted Olson, who served as George W. Bush’s Solicitor General. who called efforts to demonize detainee defense lawyers as antithetical to American values.

"The ethos of the bar is built on the idea that lawyers will represent both the popular and the unpopular, so that everyone has access to justice. Despite the horrible Sept. 11, 2001, attacks, this is still proudly held as a basic tenet of our profession," Olson wrote.

Human rights advocates are expressing shock at a federal court ruling that detainees held by the United States in Afghanistan do not have the right to challenge their detention in a U.S. federal court -- and dismay that their path to a successful appeal to the U.S. Supreme Court may be blocked.

A lawyer for the detainees, Tina Foster, warned that if the precedent stood, U.S. President Barack Obama and future presidents would be able to “kidnap people from other parts of the world and lock them away for the rest of their lives” without ever having to prove their case in court.

The case was brought on behalf of a Tunisian man who says he was captured in Pakistan in 2002, a Yemeni man who says he was captured in Thailand in 2002, and another Yemeni man who says he was captured in 2003 at another location outside Afghanistan that has not been disclosed. (The government has disputed the second Yemeni’s claim.)

The men’s case was originally heard by Judge John D. Bates, an appointee of former President George W. Bush, in Federal District Court. The Bush and Obama administrations had both urged Judge Bates not to extend habeas corpus rights beyond Guantánamo, arguing that courts should not interfere with military operations inside active combat zones.

But in April 2009, Judge Bates ruled that there was no difference between the three men who had filed suit and Guantánamo prisoners. His decision was limited to non-Afghans captured outside Afghanistan — a category that fits only about a dozen of the roughly 800 detainees at Bagram, officials have said. The appeals court overturned that ruling.

The chances of a successful appeal to the Supreme Court look slim to none. Presumably, this case would come before the Supreme Court – if the Court decides to hear the case at all – after Justice John Paul Stevens retires and Justice-designate Elena Kagan takes his seat.

But since it was Kagan, as U.S. Solicitor General, who argued the government’s case against the Bagram detainees, she would almost certainly recuse herself from the appeal. This would result in a 4-4 decision which, according to the Supreme Court’s rules, would be a victory for the government.

Chip Pitts, President of the Bill of Rights Defense Committee, called the ruling “warped and illegitimate” and said it “highlights the dire risks of excessive judicial deference to executive power.”

In overruling Judge Bates’ original decision, “the D.C. Circuit has made possible, and even likely, a return to the Bush administration approach of using end-runs around the Constitution to allow kidnapping of suspects, potentially indefinite detention, and the inevitable related abuses,” he said.

David Frakt, a former Guantanamo Bay defense counsel and now a professor at Western State University College of Law, told IPS, “The idea that the United States can seize someone anywhere in the world, then transport them to Afghanistan to be held indefinitely without access to counsel, courts or any avenue to meaningfully challenge the basis for their confinement simply by asserting, without any oversight or requirement of substantiation, that the individual seized is an enemy is deeply troubling.”

He added, ”The law of war does not support such unchecked authority. The potential for abuse is far too great to entrust this power solely to the Executive Branch.”

Nancy Talanian, Executive Director of No More Guantanamos, told IPS, “The judges’ confidence that the government would never transfer detainees to a prison site, such as a war zone, to evade habeas corpus review is bewildering, in light of the fact that the Bush administration created Guantánamo Bay prison precisely to evade judicial scrutiny.”

And Prof. Francis Boyle of the University of Illinois law school, called the decision “a serious set-back for international law, human rights, and the United States Constitution.”

He told IPS, “Bagram has become Obama's Guantanamo where he is detaining and abusing human beings beyond the reach of United States Courts and in violation of the Geneva Conventions.”

He continued, “Since Afghanistan is a party to the Rome Statute for the International Criminal Court, the highest level officials of the Obama administration could very well see themselves indicted by the ICC Prosecutor for what they are doing at Bagram and the numerous other detention centers in Afghanistan. The fact that the U.S. Courts will not act to protect the prisoners at Bagram satisfies the Rome Statute's requirement of "complementarity" and thus paves the way for the International Criminal Court to act. The ICC Prosecutor has already stated that he keeping the situation in Afghanistan under review.”

Marjorie Cohn, immediate past president of The National Lawyers Guild and a professor at the Thomas Jefferson School of Law, said the appellate court decision runs afoul of Supreme Court precedents.

She added, “Unfortunately, if the appellate court ruling in the Bagram case reaches the Supreme Court, it will likely be affirmed since Justice Stevens will be gone and Elena Kagan will recuse herself, resulting in a 4-4 tie."

And Daphne Eviatar, Human Rights First Senior Associate, said, "Under the current procedures, detainees have no right to representation by a lawyer, their hearings are not public and much of the evidence used against them remains secret. Even the rules governing the review board procedures have not been released publicly."

She continued, "It is impossible to have confidence that the United States is lawfully detaining actual enemy belligerents when their status is determined without disclosure and they can't even see all of the evidence used against them. In order to build confidence among Afghans and the rest of the world that it is lawfully detaining actual enemy belligerents, the United States should act transparently instead of withholding evidence from detainees and making determinations about their status based on secret evidence."

On the heels of reports that the Administration of President Barack Obama altered a new manual on military commission rules to accommodate an illegal drone program, a senior United Nations official is expected to call on the U.S. this week to stop Central Intelligence Agency (CIA) drone strikes against people suspected of belonging to Al Qaeda.

The UN challenge will come from Philip Alston, the United Nations special rapporteur on extrajudicial, summary or arbitrary executions. , On June 3, he is scheduled to deliver a report to the United Nations Human Rights Council in Geneva declaring that the “life and death power” of drones should be entrusted to regular armed forces, not intelligence agencies.

It is unlikely that the U.S. will accept the UN’s call because drone attacks have become an increasingly important tactic in counter-terrorism operations in Pakistan.

Alston’s views will not be legally binding, and his report will not assert that the operation of combat drones by nonmilitary personnel is a war crime, he told The New York Times.

But he clarified why he was targeting only actions by the CIA, not by the U.S. military.

“With the Defense Department you’ve got maybe not perfect but quite abundant accountability as demonstrated by what happens when a bombing goes wrong in Afghanistan,” he said. “The whole process that follows is very open. Whereas if the C.I.A. is doing it, by definition they are not going to answer questions, not provide any information, and not do any follow-up that we know about.”

Reports over the weekend suggest that the U.S. Government has been struggling to justify the CIA’s counter-terrorism involvement without violating the laws of war.

The American Civil Liberties Union (ACLU) charged last week that the Obama administration changed a new manual on military commissions rules to accommodate its illegal drone program.

Under the old rules, "murder in violation of the laws of war" was defined as killings by people who did not meet "the requirements for lawful combatancy," which would have suggested that CIA drone operators - who are not members of the military and do not wear a military uniform - could be charged with war crimes for killing individuals using drones.

The ACLU is charging that “the U.S. program of targeting and killing people, sometimes far from any battlefield, with little oversight or Transparency, is illegal regardless of the military commissions rules.”

A Constitutional scholar, Chip Pitts, President of the Bill of Rights Defense Committee, agrees. He told IPS, “The manual’s change to the definition of ‘murder in violation of the laws of war’ made in order to exempt drone killings by the CIA further reveals the double standards at play – a problem which has characterized these commissions since the outset, when normal rules of evidence, law, and humane treatment were declared inapplicable.”

He said, “I don’t want to use the old cliché about ‘lipstick on a pig’. But no matter how much you dress up these commissions, they’re still used in circumstances where they shouldn’t be used – i.e. for terrorist suspects and those not amenable to prosecution under the classic law of war -- and they remain flawed tribunals under control of the executive, like the military courts used by dictators (which the US has always rightly criticized). That’s why we’ve seen repeated resignations by military prosecutors fed up with the system. The best way to achieve justice and prevent both war and terrorism is authentic, proactive commitment to implementing the human rights to which our nation subscribes.”

These developments come in the wake of a scathing report by the American military on the deaths of 23 Afghan civilians, saying that “inaccurate and unprofessional” reporting by Predator drone operators helped lead to an airstrike in February on a group of innocent men, women and children.

The report said that four American officers, including a brigade and battalion commander, had been reprimanded, and that two junior officers had also been disciplined. Gen. Stanley A. McChrystal, who apologized to President Hamid Karzai after the attack, announced a series of training measures intended to reduce the chances of similar events.

The attack, in which three vehicles were destroyed, illustrated the extraordinary sensitivity to the inadvertent killing of noncombatants by NATO forces. Since taking command here last June, General McChrystal has made protection of civilians a high priority, and has sharply restricted airstrikes.

The overwhelming majority of civilian deaths in Afghanistan are caused by insurgents, but the growing intensity of the fighting this year has sent civilian casualties to their highest levels since 2001.

The laws of war stipulate that soldiers in traditional armies cannot be prosecuted and punished for killing enemy forces in battle. The U.S. maintains that Qaeda fighters do not meet the requirements of the Geneva Conventions — for example, wearing uniforms. They are therefore not “privileged combatants” entitled to such battlefield immunity.

But C.I.A. drone operators are also not in uniform.

The Pentagon was forced to address this issue in connection with the Plan to restart military commission trials at Guantánamo Bay. The commissions began with pretrial hearings in the case of Omar Khadr, a Canadian detainee accused of killing an Army sergeant during a firefight in Afghanistan in 2002, when Khadr was 15.

The Pentagon issued its new manual laying of commission rules the night before the first pretrial hearing. The delay was reportedly due to the time spent by government lawyers who had been rewriting a section about murder that has implications for the C.I.A. drone program.

A 2007 version of the manual defined the charge of “murder in violation of the laws of war” as a killing by someone who did not meet “the requirements for lawful combatancy” — like being part of a regular army or otherwise wearing a uniform. Similar language was incorporated into a draft of the new manual.

But, according to reporting by The New York Times, “as the Khadr hearing approached, Harold Koh, the State Department legal adviser, pointed out that such a definition could be construed as a concession by the United States that C.I.A. drone operators were war criminals. Jeh Johnson, the Defense Department general counsel, and his staff ultimately agreed with that concern. They redrafted the manual so that murder by an unprivileged combatant would instead be treated like espionage — an offense under domestic law not considered a war crime.”

The manual now states, “An accused may be convicted,” the final manual states, if he “engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war.”

C.I.A. drone operators, who reportedly fly the aircraft from agency headquarters in Langley, Virginia, might theoretically be subject to prosecution in a Pakistani courtroom under this new formulation. But it allows the United States to assure allies that it is in compliance with the laws of war.

About Me

William Fisher has managed economic development programs for the US State Department and the US Agency for International Development in the Middle East, Latin America and elsewhere for the past 25 years. He served in the administration of President John F. Kennedy.